In the recent past, the State of Karnataka has been the battleground on which a number of legal issues have been fought. Among the most prominent of these was the hijab issue, which sparked widespread protests across the country.
Defending the State in that case and many others before the Karnataka High Court was Advocate General (AG) Prabhuling Navadgi.
In July 2018, Holla had replaced Navadgi, who had resigned soon after the BJP government ceased to be in power in the State.
In this interview with Bar & Bench's Debayan Roy, Navadgi speaks about AGs changing with changes in dispensation, contentious issues before the courts, ending arguments with Bollywood song lyrics and more.
Edited excerpts follow.
Debayan Roy (DR): Why did you choose law?
Prabhuling Navadgi (PN): My father was a judge. But ironically, he did not want me to do law. He in fact wanted me to be a doctor and he actually persuaded me to join a medical college. But somehow, I always fancied law right from my childhood days…I was possibly subconsciously being influenced by my father's tenure first as a lawyer and thereafter a judge.
My interest in political science and law was always there even in my pre-university days etc. The overwhelming presence of my father in the profession possibly made me take up the choice of the legal profession.
It was so much part of our family. Lawyers coming in, judges coming in, us visiting some of the judges. So you could say that though there were no formal discussions about these things, the observations were always there.
DR: It is a tradition for Advocates General to resign from office when a party loses power. Do you think this is correct practice? Shouldn't the AG be above and beyond who is in power?
PN: If you trace back the history of the post of the Advocate General, there was a suggestion that the Law Minister of the country should be appointed as Attorney General and the Law Minister of a State must be appointed as the Advocate General. But then, it was turned down saying that we require a law officer of the State or Central government, who should not only be apolitical, but also independent. Therefore, the post of Advocate General was created.
I think there is no requirement that the Advocate General should resign immediately after the political dispensation changes.
But the highest traditions have always marked that because he is the choice of the government of the day, it is the government of the day who chooses the Advocate General.
I don’t see anything wrong in that, because ultimately, it is the policies and decisions of the government of the that day which are invariably called into question before the courts. And the Advocate General being the first law officer of the state, is not only bound to defend those decisions, but also to advise the government appropriately.
In the whole political spectrum, it is but natural that one political dispensation may take a diametrically opposite view of the previous one. Therefore, if the Advocate General appointed by previous dispensation is to continue, then he can land up in a position where he may have to oppose the decision taken by the previous AG. In order to avoid these kind of embarrassing, conflicting situations, there is nothing wrong if the Advocate General also is appointed afresh by the successive political dispensation.
DR: Have you faced a moral dilemma where your legal advice as AG was contrary to what the government desires?
PN: These are all not moral dilemmas or anything like that. We always consult, come to some conclusions together. We can always have differences, but it need not be. We need not have differences. I have not faced anything like that. I have not faced any moral dilemma with the government on any issue.
DR: As an Advocate General, are you always taken on board when the government is drafting laws and policies?
PN: They do seek our advice.
DR: What was the need to bring in the Karnataka Protection of Right to Freedom of Religion Bill, 2021?
PN: That is a question you should ask someone else, not to me.
DR: But I’m sure you were taken into confidence when it was being drafted?
PN: These are all matters of policy.
DR: You made impassioned arguments on behalf of the State during the hijab case before the High Court. How do you differentiate between a turban and a Hijab for the purposes of uniform?
PN: Insofar as this hijab case itself was concerned, the stand the State government took was that the prescription of a uniform is a right of the college management. The State government did not go into this question. All the State government said was it is for the institution concerned to prescribe what would be the uniform. Now every institution has their own way of prescribing uniform looking at the local conditions, the kind of students they have.
Therefore, they have prescribed certain rules, regulations. Distinction does not happen. As far as the State government is concerned, it did not say anything about any turban or hijab. All that we said is it is for the institution to prescribe. So long as the students met the requirements of the institutional prescription, they were allowed to be.
DR: Do you think there should be more stringent preventive action against hate speech? Do you think it is becoming community-specific?
PN: I think the existing legal framework we have is sufficient to take care of it.
DR: As per the National Crime Records Bureau report, Karnataka registered the highest number of Sedition cases in the country (22) in 2019. Why do you think the law should remain on the statute books?
PN: I would only say this much, the matter is pending before the Supreme Court of India and some interim order is passed, it would be inappropriate for me to say anything.
But the fact of the matter is, it was a requirement and it is there in the statute.
DR: In the context of the recent 'bulldozer politics' being played out, how important, in your opinion, is a fair hearing before allegedly illegal constructions are taken down?
PN: See, these matters cannot be put into a straitjacket formula. In which situations you are required to give hearing, which situations you do not give right to hearing. We have the concept of post-decisional hearing and pre-decisional hearing.
So I wouldn’t straightaway answer by saying yes, in this case hearing should have been given, or in this case hearing should not have been given.
Let us say a building is illegally constructed, and somebody is illegally occupying it and they have no right to occupy the same. The state would be perfectly entitled to reclaim property by taking possession of the same. The concept of post-decisional hearing has been evolved by the Supreme Court. It’s not for the first time anybody is taking over the land.
A Karnataka High Court judgment made a fine distinction between what is considered as illegal occupation per se, and thus principles of natural justice would not be applicable (in such cases). So, these concepts which have been evolved under administrative law can be applied depending on the facts of each case.
DR: What is your take on the PIL jurisdiction of both the Supreme Court and the High Courts? How can the judiciary separate frivolous petitions from the ones which can indeed make a difference?
PN: The Supreme Court itself in a number of decisions has invoked this jurisprudence as to what kind of petitions require to be entertained, especially in public interest litigation. There are some publicity interest litigations and philosophy interest litigations and politically motivated interest litigations which must not be entertained.
As you rightly pointed out, the theory of Justice PN Bhagwati was that PIL was for persons who are unable to have access to justice either on account of their being economically weak or because of their religions or they are placed in such a position in life where they do not have a position to approach the courts of justice.
Someone else can ventilate their grievance. This was how traditionally the theory of public interest litigation worked. However, later on, we have seen that the courts extended the scope to also review policy decisions of the governments, arbitrary actions of the police, arbitrary actions of the executive to see as to whether they conformed with law or not.
But the courts, I must say, have always maintained this balance to see whether in the garb of public interest litigation, someone else’s grievances are being ventilated or some other things are addressed. Courts always examine it. And in such situations, the courts have dismissed these petitions with exemplary costs also.
DR: There are a lot of cases today where organisations approach the court on behalf of individuals seeking relief. Do you think such petitions should be entertained?
PN: We should go back to the original theory of public interest litigation. Unless it is shown that there is a group of persons who are unable to access justice on account of certain considerations, there is no reason for someone else to come. As per the traditional theory, the person who alleges violation of fundamental rights must come to the court.
Anybody can just go and engage a lawyer. We have the Karnataka Legal Sevices Authority where free legal aid services are given. A number of these organisations come about saying that we ventilate the grievances of someone elsem which I don’t think must be entertained.
DR: Do you echo the demands of a few that the Supreme Court should have zonal benches for ease of access to justice?
PN: No, since I now represent the government, it would be inappropriate. It’s a matter of policy of the government. It would be inappropriate on my part to voice any view on that.
I must tell you that there has been a demand, in fact there has been a huge demand for establishment of benches in the Southern region.
DR: It is very rare for an AG to close arguments in a court of law by citing lines from Bollywood movie songs. You ended your arguments in the hijab case by saying ‘Na Munh Chhupa Ke Jiyo, Na Sar Jhuka Ke Jiyo. Ghamo Ka Daur Bhi Aye To Muskara Ke jiyo.' What is the message that you sought to spread?
PN: Don't you think reading of that itself sends a strong message irrespective of what case we were arguing? It does say that we have all been taught to lift our heads high and live. And finally it says that, Gamon ka daur aaye toh bhi, sar utha kar jiyo. I don’t think it requires any further explanation.
DR: Do you miss your former life as a Senior Advocate who used to get independent briefs, perhaps sleep a little peacefully?
PN: I will answer this by saying only this: Har kisi ko mukammal jahaan nahi milta, kisi ko aasama toh kisi ko zami nahi milta. Thank you so much.